LaRocca v. Board of Educ. of Jericho Union Free School Dist.

• Decision Date: 02 October 1995
• Citation: 220 A.D.2d 424,632 N.Y.S.2d 576
• Parties: , 104 Ed. Law Rep. 468 In the Matter of Anthony LaROCCA, etc., Appellant, v. BOARD OF EDUCATION OF THE JERICHO UNION FREE SCHOOL DISTRICT, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 576

632 N.Y.S.2d 576

220 A.D.2d 424, 104 Ed. Law Rep. 468

In the Matter of Anthony LaROCCA, etc., Appellant, v. BOARD OF EDUCATION OF THE JERICHO UNION FREE SCHOOL

DISTRICT, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Oct. 2, 1995.

James R. Sandner, New York City (Stuart I. Lipkind, of counsel), for appellant.

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Northport (Mary Anne Sadowski and John Gross, of counsel), for respondents Board of Education of the Jericho Union Free School District, Jericho Union Free School District, Dr. Robert Manheimer, and Martin L. Billig.

Ehrlich, Frazer & Feldman, Garden City (Jerome H. Ehrlich, of counsel), for respondent Marc Horowitz.

Before ROSENBLATT, J.P., and MILLER, O'BRIEN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of Robert Manheimer, dated March 9, 1993, which confirmed a determination of the Jericho Union Free School District, dated February 12, 1993, denying the petitioner's application to obtain a copy of a settlement agreement, the appeal is from a judgment of the Supreme Court, Nassau County (Hart, J.), entered September 13, 1993, which dismissed the proceeding.

ORDERED that the judgment is modified, on the law, by deleting therefrom the provision which dismissed the proceeding in its entirety and substituting therefor a provision granting the petition to the extent of directing the release of a redacted copy of the settlement agreement; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for release to the petitioner of a redacted copy of the settlement agreement.

In November 1992 written disciplinary charges were filed against Dr. Marc Horowitz pursuant to Education Law § 3020-a. Dr. Horowitz is employed by the Jericho Union Free School District (hereinafter the School District) as a principal and is a tenured employee. Thereafter, the Board of Education of the Jericho Union Free School District (hereinafter the Board of Education) determined that probable cause existed to support the disciplinary charges brought against Dr. Horowitz.

In December 1992 the Board of Education delegated to Dr. Robert Manheimer, the School District's Superintendent of Schools, the authority to negotiate a settlement which would dispose of the charges against Dr. Horowitz. The charges against Dr. Horowitz were "disposed of by negotiation and settled by an Agreement duly executed by [Dr. Manheimer] and [Dr. Horowitz] on December 14, 1992" (hereinafter the settlement agreement). The Board of Education then adopted a resolution withdrawing, without prejudice, the charges against Dr. Horowitz and directing the School District's attorney to advise the New York State Department of Education that the charges were withdrawn.

The petitioner Anthony LaRocca, Vice-President of the Jericho Teachers Association, which represents teachers employed in the school supervised by Dr. Horowitz, requested "a copy of the Board [of Education] resolution regarding the negotiated disposition and a copy of the accepted agreement between Dr. Horowitz, [Dr. Manheimer] and the Board of Education". LaRocca's request was denied because disclosure of the agreement "would constitute an unwarranted invasion of personal privacy" and "[t]he request relates to intra-agency or inter-agency materials which the School District is not required to disclose". LaRocca appealed the School District's determination to Dr. Manheimer. He subsequently affirmed the School District's determination.

LaRocca then commenced the instant CPLR article 78 proceeding, seeking disclosure of the settlement agreement under Public Officers Law article 6, commonly known as the Freedom of Information Law (hereinafter FOIL). He argued that FOIL makes the records of public agencies presumptively accessible, and that the settlement agreement did not fall within any of the recognized exceptions. The School District, as well as Dr. Horowitz, opposed the petition on the same basis as had previously been relied upon in denying LaRocca's initial request. The court denied the petition and dismissed the proceeding, finding, inter alia, that disclosure of the settlement agreement was exempt under FOIL because the document sought was an employment record, disclosure of which would be an unwarranted invasion of privacy. It also found that disclosure of the settlement agreement would violate the legislative intent of Education Law § 3020-a in providing tenured educators with the option of having confidential disciplinary proceedings.

It is well settled that FOIL imposes a broad duty of disclosure on government agencies (see, Public Officers Law § 84; Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 419 N.Y.S.2d 467, 393 N.E.2d 463). All agency records are presumptively available for public inspection and copying, unless they fall within 1 of 10 categories of exemptions which permit agencies to withhold certain records (Public Officers Law § 87[2]; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., 62 N.Y.2d 75, 79-80, 476 N.Y.S.2d 69, 464 N.E.2d 437; Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750). The Court of Appeals has repeatedly stated that "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government" (Matter of Capital Newspapers v. Whalen, 69 N.Y.2d 246, 252, 513 N.Y.S.2d 367, 505 N.E.2d 932; Matter of Buffalo News v. Buffalo Enter. Dev. Corp., 84 N.Y.2d 488, 492, 619 N.Y.S.2d 695, 644 N.E.2d 277; Matter of Russo v. Nassau County Community Coll., 81 N.Y.2d 690, 697, 603 N.Y.S.2d 294, 623 N.E.2d 15).

However, expressly exempted from mandatory disclosure are records that "if disclosed would constitute an unwarranted invasion of * * * privacy" (Public Officers Law § 87[2][b], including but not limited to "disclosure of employment, medical or credit histories or personal references of applicants for employment" (Public Officers Law § 89[2][b][i]. Further, although it is clear that a record is not considered an "employment history" merely because it records facts concerning employment (see, Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 570, 505 N.Y.S.2d 576, 496 N.E.2d 665), the term "employment history" for purposes of FOIL exemptions is not defined in the statute, nor well interpreted by case law. However, its companion term "medical history" has been defined as "information that one would reasonably expect to be included as a relevant and material part of a proper medical history" (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 168 A.D.2d 884, 564 N.Y.S.2d 805, aff'd 79 N.Y.2d 106, 580 N.Y.S.2d 715, 588 N.E.2d 750). The Court of Appeals has approved this definition, stating that it "capture[d] the essence of the exemption in that it encompasses the very sort of detail about personal medical condition that would ordinarily and reasonably be regarded as intimate, private information" (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 112, 580 N.Y.S.2d 715, 588 N.E.2d 750).

Having examined the settlement agreement, we find that the entire document does not constitute an "employment history" as defined by FOIL (see, Matter of Hanig v. State of New York Dept. of Motor Vehicles, supra) and it is therefore presumptively available for public inspection (see, Public Officers Law § 87[2]; Matter of Farbman & Sons v. New York City Health and Hosps. Corp., supra, 62 N.Y.2d 75, 476 N.Y.S.2d 69, 464 N.E.2d 437). Moreover, as a matter of public policy, the Board of Education cannot bargain away the public's right to access to public records (see, Board of Educ., Great Neck Union Free School Dist. v. Areman 41 N.Y.2d 527, 394 N.Y.S.2d 143, 362 N.E.2d 943). Thus, to the extent that the settlement agreement, or any part thereof, purports to deny the public access to it in its entirety, such a provision is unenforceable as against the public interest.

However, having examined the settlement agreement in camera, we find that the release of that portion of the agreement which contains references to charges which were denied and/or not admitted by Horowitz or which contain the names of any teachers, would constitute an unwarranted invasion of privacy as defined by Public Officers Law § 87(2). Therefore, the agreement must be redacted prior to its release to the petitioner. In the interest of judicial economy, we have redacted it, and the matter is remitted to the Supreme Court, Nassau County, to release copies of the redacted agreement to the petitioner.

We have examined the respondents' remaining contentions and find them to be without merit.

ROSENBLATT, J.P., and MILLER and FLORIO, JJ., concur.

O'BRIEN, J., concurs in part and dissents in part and votes to reverse the judgment and grant the petition in its entirety, with the following memorandum:

I disagree with the majority's conclusion that the settlement agreement should be disclosed in a redacted form. The disciplinary charges against Dr. Horowitz which he neither admitted nor denied are not protected from disclosure under the Freedom of Information Law (Public Officers Law article 6) (hereinafter FOIL). Accordingly, I would reverse the judgment, grant the petition, and direct the respondent agency to disclose the settlement agreement in its entirety.

The School District denied the petitioner access to the settlement agreement based on two exemptions in the Public Officers Law. The School District claimed that (1) the agreement constituted nonfinal intra-agency or inter-agency materials (see, Public Officers Law § 87[2][g][iii] ) and (2) disclosure would constitute an unwarranted invasion of personal privacy because the agreement constituted...